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July 9, 2012

Punitive Laws, Human Rights Abuses Threaten HIV Progress

by Cristina Gonzalez

Punitive laws that abuse human rights are costing lives, wasting money and undermining the progress made against HIV according to HIV and the Law: Risks, Rights and Health, a report released ahead of the XIX International AIDS Conference by the Global Commission on HIV and the Law, an independent body of experts convened by the United Nations Development Programme.

The commission has found that punitive laws—legislation that criminalizes people living with HIV—are holding back what could be a successful response to the epidemic. These laws unwittingly increase HIV transmission, hurt already at-risk populations, disproportionately target women and youth and hinder access to HIV treatment.

Laws that criminalize either the non-disclosure of HIV or the transmission of HIV increase stigma and ultimately discourage people from getting tested because they fear prosecution, the commission suggests. Currently, more than 60 countries (including 37 states in the United States) criminalize HIV transmission, and high-income countries lead the world in the actual prosecution of these laws. To date, more than 600 people have been convicted of these “crimes.”

The commission also found that many laws criminalize at-risk populations, notably sex workers, injecting drug users and men who have sex with men. More than 100 countries criminalize some aspect of sex work; most countries do not provide harm reduction services for injecting drug users (or they restrict such services); and 78 countries criminalize same-sex sexual activity. These laws make already vulnerable populations more vulnerable and drive them away from HIV and harm reduction health services.

In addition, the commission found that governments have laws and allow customs that disempower women, making it almost impossible for them to protect themselves or negotiate safe sex. In Africa, Latin America, Asia and the Middle East, early marriage and genital mutilation are established practices, and in more than 120 countries, marital rape is not a crime. Furthermore, in many countries around the world, including the United States, youth are barred from accessing sexual and reproductive services that would stop the spread of HIV.

The commission also found that intellectual property protections, put in place to encourage innovation, are doing the opposite. Companies are simply not producing medication for low-income countries, and in instances in which countries have tried to produce generics on their own, they have suffered. In 2007, when Thailand issued a license for an antiretroviral medication produced by Abbott, the company announced it would withdraw applications for marketing approval for new drugs in the country.

Most countries waste resources by focusing on and enforcing harmful laws that undercut any improvements in health, the report suggests.

The commission found that positive changes in law and policy could lower new adult HIV infections to 1.2 million by 2031, compared with 2.1 million if current efforts continue with no change.

None of this is to say that legal responses to the HIV epidemic are entirely unhelpful. The commission found that in cases where governments enacted laws based on scientific evidence, there was a positive effect on the HIV/AIDS epidemic.

In India, for example, when police worked with community workers to provide condoms, HIV prevalence among sex workers dropped from 11 percent in 2001 to less than 4 percent in 2004. And in 2010, when Ecuador issued a compulsory license for an antiretroviral med, the price fell by 70 percent. In short, good laws had good consequences.

To build an effective and sustainable response to HIV, the commission recommends that countries and governments across the world do the following: outlaw discrimination, repeal punitive laws and ensure human rights.

“We must ensure that new interventions to prevent and treat HIV reach the people who need them most,” said Festus Mogae, member of the commission and the former president of the Republic of Botswana. “Laws that prohibit discrimination and violence and protect at-risk populations are a powerful, low-cost tool to ensure that HIV investments are not wasted. Undoubtedly, enforcing such laws is complex and politically challenging, but our reports show that it can and must be done.”

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